UNITED STATES COURT OF APPEALS
Filed 4/12/96
FOR THE TENTH CIRCUIT
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ROBERT EARL SCOTT, )
)
Petitioner-Appellant, )
)
v. ) No. 95-2245
) (D.C. No. CIV-92-119)
ROBERT J. TANSY, Warden; ATTORNEY ) (Dist. of New Mexico)
GENERAL FOR THE STATE OF NEW )
MEXICO, )
)
Respondents-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the appellate record, this
panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R.
App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Robert Earl Scott (Scott) appeals from the district court’s
Order dismissing with prejudice his petition for a writ of habeas
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
corpus pursuant to 28 U.S.C. § 2254.1
On July 16, 1989, Scott was convicted in a New Mexico state
district court of second degree homicide, aggravated assault with
a deadly weapon, and false imprisonment. He was sentenced as a
habitual offender to 17 years imprisonment followed by two years
probation.
After exhausting his state court remedies, Scott filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that: (1) the state trial court judge’s failure to recuse
himself sua sponte because he had presided over Scott’s divorce
denied him due process; (2) he was denied his Sixth Amendment right
to confrontation when the trial court limited his cross-examination
of his ex-wife regarding the validity of the divorce decree; and
(3) his trial counsel was ineffective for failing to investigate
potential witnesses, failing to call certain witnesses, and failing
to move to recuse the state trial judge. The matter was assigned
to Magistrate Judge Svet who held an evidentiary hearing on January
6, 1995.
At the hearing, the magistrate judge heard the testimony of
Scott and his trial counsel and admitted into evidence the
affidavit of state trial court Judge Robert M. Doughty II. On July
2, 1995, the magistrate judge issued his Proposed Findings and
1
We grant issuance of a certificate of probable cause
simply to reach the merits of the case.
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Recommended Disposition, recommending that Scott’s petition be
denied. The magistrate judge concluded that: Scott failed to show
that the state trial judge was biased or appears to have been
biased; Scott’s speculation that the trial judge’s prior knowledge
gained from the uncontested divorce proceeding influenced his
rulings was not supported by any facts; Scott failed to demonstrate
that his ability to inquire into the circumstances of his domestic
relations case or to cross-examine his ex-wife was limited, let
alone that any such limitation was prejudicial; Scott’s
ineffectiveness claims challenging his counsel’s tactical decisions
fail, inasmuch as those decisions “were clearly reasonable tactical
choices made after considerable investigation.”
On October 27, 1995, the district court adopted the Proposed
Findings and Recommended Disposition of the magistrate judge and
dismissed Scott’s petition with prejudice.
On appeal, Scott reiterates his claims made to the district
court. We review a district court’s legal conclusions in
dismissing a petition for a writ of habeas corpus de novo,
Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993), although
findings of fact underlying mixed questions of law and fact are
accorded the presumption of correctness. Manlove v. Tansy, 981
F.2d 473, 476 (10th Cir. 1992).
We AFFIRM substantially for the reasons set forth in the
magistrate judge’s Proposed Findings and Recommended Disposition of
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July 2, 1995, and the district court’s Order of October 27, 1995.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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